Hired applicant was the same age: How can he sue for bias?
February 24, 2009 by Sam NarisiPosted in: Age Discrimination, In this week's e-newsletter, Interview Questions, Latest News & Views
As more people over 40 are searching for new jobs in this economy, managers need to be more careful about giving the impression of age bias. As one recent case shows, courts are letting more claims from rejected applicants proceed.
Read the facts of this real-life case and decide: Who won?
The facts:
A 50-year-old candidate applied for a job with the company. He claimed the hiring manager regarded him highly during a phone interview but changed attitudes when they met in person. According to the applicant, he repeatedly asked the manager several details about the job, but the manager refused to answer. After learning he didn’t get the job, he sued, believing his age was the real reason.
The employer said:
To fight the claim, the company pointed to the person who was hired: a 47-year-old woman. Given such a small difference, how could the applicant’s age have played a factor?
Who won the case?
Answer: The applicant.
Why: It didn’t matter to the judge that the two candidates were only three years apart. There’s no set standard about how big an age difference there needs to be for a bias claim to be successful.
The real issue is whether or not the man’s age played a role in the decision that was made about him. And in this case, the company couldn’t prove it didn’t.
Cite: D’Cunha v. Eckerd Corp.
Tags: hiring discrimination, phone screen, rejected candidates
February 24th, 2009 at 10:51 am
Yikes. So the company didn’t have (or provide) any notes as to why they felt the 47 year old woman was more qualified? Seems like that’s all they had to do – but didn’t.
February 25th, 2009 at 10:29 am
Seems to me that the applicant has to provide some reasonable grounds to believe that age was a factor before the burden shifts to the employer to refute it. I don’t see that initial burden having been met.
February 25th, 2009 at 10:43 am
1) How could it be proven that the company knew the ages before making a hiring decision? Or do we maintain the discrimination was because the male candidate ‘looked’ older than the female candidate? Do I learn from this that it is to my benefit to stay in shape and look younger to get jobs, or let myself go so that if I don’t get the job I can file for discrimination?
2) If the male candidate had been hired, the female could have brought forth a discrimination complaint based on gender – so how can we win? By exhaustive CYA documentation only.
This is my least favorite part of the job – not just doing good work and making good choices, but making sure everything is legally defensible if challenged – it insults me that I even have to ask myself what risks I am running by selecting one person over another. I know, I know, it is supposed to keep us all honest and keep the playing fields even – but still.
February 25th, 2009 at 10:45 am
Well, apparently the courts disagreed with you, Mike.
February 25th, 2009 at 10:58 am
Why be surprised……with any such “civil rights” claims the process is upside down…….employers are presumed “guilty” and must prove their innocence, claimants don’t have to prove anything, just file the charge and harass the employer!
February 25th, 2009 at 11:31 am
It appears that the biggest mistake took place during the interview process because the employer failed to follow the same procedure with the male candidate when information about the position was not disclosed. This would be considered a major factor in any interview and the fact it was not disclosed nor wold the interviewer provide any informaiton about the position would show bias. Had this been done for all candidates, then it would probably move to either qualifications for the position or “best fit” for personality – team player, etc.
February 25th, 2009 at 11:56 am
maybe it was age discrimination?
February 25th, 2009 at 3:04 pm
Question for someone: If you ask an employee about someone who put a resume in for a job, can that employee get in trouble if they gave the person a bad reference?
February 25th, 2009 at 3:20 pm
Depends on who the employee who gave the reference was (officially or simply a peer observation) and if the reference was true and defensible and if the reference kept the employee from getting a job.
Facts and absolute truth are the only items which should be used in references.
February 27th, 2009 at 1:16 pm
This does not surprise me at all. Even though, I think the employer could have done things better. One thing that strikes me odd is the fact the Manager did not want to disclose certain details about the job. It almost makes the applicant feel your intentionally keeping things away from them because you do not feel they are a “close fit” anyway. I was involved in an age discrimination claim from the EEOC in my younger HR days. Thankfully, our recruiment process was consistent and they found no basis for the claim. It taught me to equally document why you gave someone the job just as well as soemone you didn’t offer it to.
March 18th, 2009 at 2:59 pm
My husband was recently indefinitely laid off from a job that he had held for 12 years with the reasoning that it was because of the economy. He was the oldest employee there, both in age and seniority. The problem with this situation is that in the fall of 2008, they had hired 3 new employees and they are still working full time, while my husband was the only one laid off and he was only 4 years away from retirement. Do this seem like age discrimnation to anyone other than my husband and myself.
March 18th, 2009 at 4:34 pm
Hello, LDS:
It certainly sounds like age discrimination. Being “old” myself, it’s scary. I do, however, think there is a difference in not hiring someone versus eliminating the oldest and most senior employee for economic reasons. That is very suspicious.
March 28th, 2009 at 9:45 pm
The same employee was rejected a second time five months later, and a 42 year old was hired instead, by the same hiring district supervisor. The supervisor again refused to give information about the job position and exact address.
I can not give further details except the case numer: 479F.3d 193, 194 (2d Cir. 2007).
Also the fact that the applicant is representing himself (PRO-SE) in this case.